HomeMy WebLinkAboutMemorandum of Understanding with Ada County Highway District for Routine Maintenance in Public Rights-of-WayMEMORANDUM OF UNDERSTANDING
ROUTINE MAINTENANCE IN PUBLIC RIGHTS-OF-WAY IN ADA COUNTY
This Memorandum of Understanding, made and entered into this f 6~day of ~~ , 2003, by
and between Ada County Highway District (hereafter "ACHD" or "Highway District") and the
following municipal corporation, the City of Meridian, (hereinafter "Municipality" or
"Municipal Party"), all parties being political subdivisions and bodies politic and corporate of the
State of Idaho.
RECITALS
A. ACHD adopted revisions to Section 6000 of the ACHD Policy Manual by approval of
Resolution No. 647 on June 26, 2002.
B. Section 67-2328 of the Idaho Code provides that any power, privilege or authority,
authorized by the Idaho Constitution, statute or charter, held by the state of Idaho or a public
agency of said state, may be exercised and enjoyed jointly with the state of Idaho or any other
public agency of this state having the same powers, privilege or authority, but never beyond the
limitation of such powers, privilege or authority. This section further provides that state or any
public agency thereof when acting jointly with another public agency of this state may exercise
and enjoy the power, privilege and authority conferred by this act, but nothing in this act shall be
construed to extend the jurisdiction, power, privilege or authority of the state or public agency
thereof, beyond the power, privilege or authority said state or public agency might have if acting
alone. Both ACHD and Municipal Party contend it has certain powers, privileges and authority
pertaining to public rights-of--way.
C. ACHD seeks to require municipalities to obtain an Annual Permit or Temporary Use
Permit from ACRD for the routine inspection, repair, replacement or maintenance of facilities,
utilities occurring in the public rights-of--way, but not involving damage to an improved highway
(herein "routine maintenance"), unless the municipality and ACHD enter into a separate
agreement addressing the routine maintenance of facilities, utilities within the public rights-of-
way.
D. The parties desire to enter into such a separate agreement, pursuant to ACHD Manual
Section 6008.2.2.5, for the purpose of minimizing the disruption and hazard to vehicular and
pedestrian traffic resulting from routine maintenance activities by improving cooperation and
communication among the parties.
E. This Agreement will govern the activities of the Municipal Party in conducting non-
destructive work, i.e., no excavation, in the public rights-of--way in Ada County, Idaho. Any
work that necessitates digging of any sort (by hand or machine) in the public rights-of--way is not
covered under this Agreement, and is regulated by sections 6000 and 8300 of ACRD policy
manual.
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NOW THEREFORE, in consideration of the premises, mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1.0 Annual Meeting -ACHD and the Municipal Party agree to meet annually during the
month of November to discuss work zone traffic controls and the operation of this Agreement.
2.0 Annual Fee. The Municipal Party shall pay to ACHD the sum of $150.00 to be paid on
an annual basis. Said sum to be paid by January 1, of each calendar year. Failure to pay the
annual fee will result in ACHD terminating this Agreement.
3.0 Work Hours -Arterials and Collectors.
3.1 Peak Hours and Emergency Work. Except during emergencies, or with specific
approval of ACHD, routine maintenance will not be conducted on Arterial and Collector streets
on Monday through Friday during: (a) 7:00 a.m. to 9:00 a.m.; (b) 11:30 a.m. to 1:00 p.m.; and (c)
4:00 p.m. to 6:00 p.m. In the event of Peak Hour Emergency Work where an Arterial or
Collector street is expected to be occupied at a particular location for more than 15 minutes,
personal or telephonic notice will be given to ACHD at the time of the commencement of work
or as soon as practicable following commencement. Telephonic notice shall be directed to
ACHD's Construction Desk, telephone number (208) 387-6280. During non-working hours,
notice of Emergency Work shall be directed to ACHD's Construction Desk, at the telephone
number provided, which will refer the caller to the appropriate on-call personnel.
3.2 Non-Peak Hours. When a particular location on an Arterial or Collector street is
expected to be occupied for more than one hour during: 9:00 a.m. to 11:30 a.m. and 1:00 p.m. to
4:00 p.m., Monday through Friday, advance notice shall be given to ACHD before routine
maintenance work begins. Notice shall be given as provided in Section 3.1 of this Agreement.
3.3 Priority of Work. Non-emergency routine maintenance shall not interfere with
activity in the same vicinity being conducted under a specific ACRD Temporary Highway Use
Permit.
4.0 Traffic Control and ACHD Policy Provisions
4.1 Traffic Control Standards. The parties agree that the Manual on Uniform
Traffic Control Devices for Streets and Highways, Millennium Edition, Revision 1 December
28, 2001, Errata No. 1, Dated June 14, 2001 (hereinafter "MUTCD"), and any revisions thereto,
shall be the standard governing the Municipal Party's traffic control measures while conducting
routine maintenance activities. During the course of routine maintenance, the Municipal Party
shall be responsible to provide, erect, maintain and remove all traffic control devices, including
but, not limited to signs, temporary striping, barricades, arrow boards, and lighting, in
conformance with the MUTCD. ACHD has provided additional guidance for traffic control
measures that is attached hereto as Exhibit "A" entitled, "Maintenance Traffic Control
Applications". ACHD may modify these guidelines from time to time. In the event of such
changes, ACRD will provide the revised guidelines to the Municipal Party. The parties agree
that the Maintenance Traffic Control Application and any revisions thereto, provides only
MEMORANDUM OF UNDERSTANDING, P. 2
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guidelines and shall not be construed by the Municipal Party to create any additional standards or
warrants under this Agreement. Notwithstanding the traffic control matrix attached hereto, the
Municipal Party shall at all times comply with the standards set forth in the MUTCD for traffic
control during its routine maintenance activities. Nothing in this Agreement shall be construed
to prevent the Municipal Party from instituting traffic control measures that are more
comprehensive than required by this Agreement.
4.2 Compliance with Policy Manual.
4.2.1. This agreement is entered into pursuant to ACHD Policy Manual section
6008.2.2.5. The following provisions from section 6000 of the latest adopted edition of the
ACRD Policy Manual are hereby incorporated and made part of this Agreement. Except as
modified by this Agreement, the Municipal Party shall comply with section 6001 entitled
"Definitions"; section 6003 entitled "Standards and Specifications"; section 6008.2.3 entitled
"Emergencies"; section 6008.8.2 entitled "Right Conferred"; section 6008.9 entitled "Liability
Insurance"; section 6008.10 entitled "Performance Bond"; section 6008.11 entitled
"Indemnification"; section 6008.12 entitled "Compliance with Law; Hazardous Materials";
section 6008.13.2 entitled "Qualifications for Work Permit"; section 6008.13.5 entitled "Traffic
Control Requirements for Permitted Work"; section 6008.13.7 entitled "Highway Closures";
section 6008.13.9 entitled "Clean Up and Restoration"; section 6008.13.10 entitled "Avoidance
of Nuisance"; section 6008.13.12 entitled "Drainage Requirements"; section 6008.13.13 entitled
"Other Requirements"; section 6008.16 entitled "Protection of Adjoining Property"; section
6008.17 entitled "Preservation of Monuments and Property Markers"; section 6008.18 entitled
"Repair of Damage to Highway"; and section 6008.20.4 entitled "Stoppage for Temporary
Highway Use Permit" The Municipal Party shall also comply with section 8300 entitled
"Construction Site Discharge Control Program of the latest adopted edition of the ACHD Policy
Manual.
4.2.2. Amendments.
a. The provisions of the ACHD Policy Manual listed in section 4.2.1 of this
Agreement, except for section 6008.2.3 entitled, "Emergencies"; section 6008.12 entitled
"Compliance with Law; Hazardous Materials"; section 6008.13.7 entitled "Highway
Closures"; section 6008.13.12 entitled "Drainage" and section 6008.18 entitled "Repair
of Damage by District", shall be amended as follows:
i. Delete the following terms: "permit", "annual permit", "work permit",
"temporary highway use permit", and replace with the term
"memorandum of understanding".
ii. Delete the terms: "permittee" and "applicant", and replace with the term
"Municipal Party".
iii. Delete the terms: "permitted work" and "permitted activity", and replace
with the term "routine maintenance work".
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b. Amend section 6008.12 entitled "Compliance with Law; Hazardous Materials", in
the first sentence, delete the term "Activity" and replace it with "routine maintenance
activity", and delete the term "Permittee" and replace the term with "Municipal Party."
c. Amend section 6008.13.7 entitled "Highway Closures" delete the term
"Permittee" and replace with "Municipal Party", and delete the term "permitted Activity"
and replace with "routine maintenance activity". Delete the second sentence and replace
it with the following sentences: "The Municipal Party shall give notice of the closure to
the District Engineer. Such notice shall be given at least two (2) working days prior to
the proposed closure."
d. Amend section 6008.13.12 entitled "Drainage Requirements", delete the terms:
"excavation" or "excavations activities", and replace with the term "non-destructive
dewatering activity". Delete the reference to "or resulting from sluicing "from the first
sentence in section 6008.13.12.
e. Amend section 6008.18 entitled "Repair of Damage to Highway", delete the term
"permittee" and replace with term "municipal party". Amend section 6008.18.2 by
deleting the last sentence of the section that states "The cost of any such repair or
remedial work may be recovered by the District by making claim against the Permittee's
Performance Bond posted in accordance with the provisions of section 6008.10".
4.2.3. Except for the amendments set forth in section 4.2.2 of this Agreement, and any
other modifications made by this Agreement, all other terms and conditions of the provisions of
the ACHD Policy Manual which are listed in section 4.2.1 of this Agreement are hereby ratified
and confirmed and shall be and remain in full force and effect.
4.2.4 The Municipal Party shall comply with any future revisions to the provisions of
the ACHD Policy Manual listed in section 4.2.1 of this Agreement. ACHD shall notify the
Municipal Party of any proposed changes to the aforementioned sections in ACHD's Policy
Manual to allow the Municipal Party to provide input to such changes.
4.2.5 The Municipal Party shall comply with sections 6000 and 8300 of the ACRD
Policy Manual on any work involving destructive work, i.e. excavation or digging in the public
rights-of--way.
5.0 Non-Compliance Procedures.
5.1 Notice of Violation.
5.1.1 Upon ACHD personnel's observation of an apparent failure of the
Municipal Party to comply with this Agreement, ACRD personnel shall immediately verbally
notify the onsite crew leader or other employee of the Municipal Party.
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5.1.2 If the onsite crew leader takes the appropriate action with regard to the
verbal notification, ACHD will document the infraction, and no further proceedings will be had
with respect to the individual infraction. A written copy of the infraction will be forwarded to
the designated agent of the Municipal Party. Multiple infractions by the same crew leader or
crew may result in ACHD issuing a Notice of Violation. The proceedings set forth in Sections
5.1.3, 5.2 and 5.3 of this Agreement shall apply with respect to the Notice of Violation.
5.1.3 If the onsite crew leader fails to take appropriate action with regard to the
verbal notification, ACHD will issue a Notice of Violation to the designated agent(s) of the
Municipal Party within five (5) working days of the incident. The Notice shall contain the
following information: The time, date, location and a description of the alleged violation,
including, if available, the name of at least one involved maintenance worker and identifying
vehicle marking.
5.1.4 The Municipal Party shall designate in writing to ACHD's Construction
Department, the name, title, mailing address, fax and telephone number of the agent(s)
designated to receive all notices including Notice of Violation and/or infractions under this
Agreement. The Municipal Party may change its designated agent, address, fax and telephone
number by notifying ACHD in writing of these changes. The Municipal Party may request
ACHD to include additional designees to receive notice under varying specified circumstances.
The information shall be mailed to the Permit Coordinator Construction Department, Ada
County Highway District, 318 East 37~ Street, Garden City, Idaho 83714.
5.2 Non-Compliance Correction and Appeal.
5.2.1 Upon receipt of a Notice of Violation; the Municipal Party shall provide
ACHD, within five (5) working days, either: (a) a written response describing steps, procedures
and/or disciplinary measures ("corrective measures") that will be implemented to minimize or
eliminate future similar violations; or (b) a notice of appeal; or (c) both (a) and (b).
5.2.2 The Notice of Appeal shall specify the Municipal Party's grounds for
appeal, including the reasons why the party contends the incident should not be considered a
violation. Upon receipt of the Notice of Appeal, ACHD will schedule an appeal hearing between
the parties to be held at ACHD offices as soon as reasonably possible following the Notice of
Appeal. Notice of the time and date of the hearing will be mailed to the Municipal Party's
designated agent. ACHD's District Engineer (hereinafter "District Engineer") shall preside at the
appeal hearing. After the hearing, the District Engineer will render a written decision, either
affirming, or dismissing the violation.
5.2.3 If the District Engineer affirms the violation, the Municipal Party may
appeal such decision to the ACHD Director by filing written notice with the Director within
twenty one (21) days following the date of the mailing of the District Engineer's decision. The
Director's consideration and decision shall be based upon the information provided in the record
on appeal, which includes any written argument submitted by ACRD staff or the Municipal
Party. There shall be no right to appear in person or present oral argument before the Director,
unless expressly granted by the Director. The Director's decision shall be final.
MEMORANDUM OF UNDERSTANDING, P. 5
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5.3 Non-Compliance Fee for Violation
5.3.1 First Notice of Violation. If ACRD notifies the Municipal Party that
ACRD finds the proposed corrective measures specified under Section 5.2.1 to be inadequate
and the Municipal Party fails to appeal, or if the Municipal Party fails to appeal the alleged
violation, or if upon appeal the decision maker rules against the Municipal Party, the Municipal
Party shall pay anon-compliance fee of $75.00 to ACHD. The non-compliance fee may be
waived by action of the ACHD Director.
5.3.2. Second Notice of Violation. The non-compliance fee for the second
Notice of Violation for which ACRD has made the appropriate findings against the same
offending party, within a one calendar year period (January through December), shall be a fee of
$150.00. The non-compliance fee maybe waived by action of the ACHD Director.
5.3.3. Third Notice of Violation. In the instance of the issuance of a Third
Notice of Violation for which ACHD has made the appropriate findings against the same
offending party, the directors of the Municipal Party and ACHD shall meet to discuss the issues
related to the Notices of Violation. The parties shall work towards a resolution of the cause of
these violations.
5.4 Emergency Suspension. The District Engineer may immediately suspend a
routine maintenance activity when the Municipal Party commits an egregious act, such as to
create a hazardous situation that poses an immediate danger to public safety. A hazardous
situation exists where there is a great likelihood of serious injury or death. The Non-Compliance
procedures set forth in section 5.0 shall apply in addressing such egregious act.
6.0 Indemnification. The Municipal Party shall indemnify, defend and hold ACHD harmless
against any and all claims, demands, actions, judgments, costs, expenses and liabilities of any
kind arising from the fault or negligent acts of the Municipal Party while conducting routine
maintenance activities in or on the Right-of--Way. Such fault or negligent acts includes, but is
not limited to the failure of the Municipal Party to institute proper traffic control measures while
conducting routine maintenance activities. Such indemnification shall include, but shall not be
limited to the following claims and demands: (a) damage to property; (b) injury to person(s); (c)
death; (d) worker's compensation; and (e) nuisance. Such indemnification shall include the costs
and reasonable attorney fees of ACHD in defending against any and all claims, which may arise,
directly or indirectly, from the operations of the Municipal Party. This indemnification provision
is intended to cover the affirmative acts or omissions of the Municipal Party in the conduct of
Routine Maintenance Activities. Such indemnification shall not include any breach of a general
statutory duty imposed upon the Municipal Party by operation of law.
ACHD shall indemnify, defend and hold the Municipal Party harmless against any and all
claims, demands, actions, judgments, costs, expenses and liabilities of any kind arising from the
negligent acts of ACHD that ACHD takes in its inspection of the Municipal Party's traffic
MEMORANDUM OF UNDERSTANDING, P. 6
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control measures taken during the Municipal Party's performance of routine maintenance
activity. This indemnification provision is intended to cover the negligent acts of ACHD in
inspecting a particular routine maintenance activity of the Municipal Party in the field. Such
indemnification shall not include any breach of a general statutory duty imposed upon ACHD
by operation of law arising from ACHD's exclusive general supervision and jurisdiction over all
highways and public rights-of--way. Such indemnification shall include the costs and reasonable
attorney fees of the Municipal Party in defending against any and all claims, which may arise,
directly or indirectly, from the negligent inspection activities of ACHD .
7.0 Term and Termination of Agreementien. This Memorandum of Understanding will
commence on the date of the parties' execution of this Agreement and continue in effect until
terminated by either party as set forth below.
7.1 Termination with or without Cause. Either party may terminate this Agreement with or
without cause, which termination shall be effective following thirty (30) days advance written
notice of termination given the other party. Rights and obligations accrued prior to termination
shall not be affected by such termination.
8.0 Definitions.
"Agreement" shall mean this Memorandum of Understanding unless the context clearly
requires otherwise.
"Arterials or collectors" mean the functional classification of the highway system within
the jurisdiction of ACHD.
"Emergency" shall mean an unexpected, unanticipated situation or circumstance
requiring immediate attention to avoid damage or injury to person, property or environment.
"Facility" or facilities" means any structure placed in, on or under a Highway, including,
but not limited to, water pipelines, geothermal pipelines, natural gas pipelines, petroleum product
pipelines, street lights, sanitary sewer lift stations, monitoring stations, sanitary sewer pipelines;
manholes; telephone, telegraph, electric, cable television or other telecommunications lines and
cables; pressure irrigation, gravity flow irrigation or storm drainage structures and systems; and
publicly owned trees and signs.
"Highways" or "highway" shall have the meaning set forth in Idaho Code Section 40-
109(5), and shall include all public rights-of--way as defined in Idaho Code Section 40-117(6), as
those code sections may be amended from time to time, which highways and public rights-of-
way are under the jurisdiction of ACHD, as they presently exist and as the same maybe laid out,
widened, relocated, acquired and vacated or otherwise transferred in the future.
"Party" shall mean a signatory to this agreement or its authorized representative.
"Peak hours" shall mean in general the hours from 7:00 a.m. to 9:00 a.m., 11:30 a.m. to
00 p.m., and 4:00 p.m. to 6:00 p.m., Monday through Friday, on Arterial or Collector streets.
MEMORANDUM OF UNDERSTANDING, P. 7
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Peak hours may also be extended as a result of civic events, seasonal activities or similar
activities that substantially impede the flow of vehicular traffic on Arterial or Collector streets or
specified on an Agreement.
"Routine maintenance" shall mean typical, non-destructive maintenance activities,
including, but not limited to, the following: facility and power locations, pole painting, street
light bulb replacement, wire replacement not involving excavation, dewatering, flushing fire
hydrants, inspection and operation of valves and facilities, smoke testing, wastewater sampling,
setting flow meters, flushing, cleaning, televising and/or dye testing sewer lines, working in or
on a manhole, collection of effluent samples (including H2S gas sampling), groundwater
monitoring, surveying, inspection and other similar non-destructive activities.
"Violation" shall mean the failure of a maintenance worker or maintenance crew to
immediately correct, when verbally notified by an authorized representative of ACHD, a
situation in which there is non-compliance with this agreement.
9.0 Miscellaneous.
9.1 The rights and terms of this Agreement shall not apply to any private contractors
contracting with the Municipal Party. Private contractors of the Municipal Party shall procure a
Temporary Highway Use Working Permit for routine maintenance work in the public rights-of-
way.
9.2 This Agreement contains the entire understanding between the parties with
respect to the subject matter hereof.
9.3 This Agreement may not be modified or amended, except in writing signed by
ACHD and the Municipal Party.
9.4 All signatories represent and warrant that they have the power to execute this
Agreement and to bind the entity they represent to the terms of this Agreement.
9.5 Should any party be required to commence legal action against another party to
enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees and costs incurred in said action.
9.6 Any action at law, suit in equity, or judicial proceeding for the enforcement of this
Agreement shall be instituted only in the court of the State of Idaho, County of Ada.
9.7 The rights and obligations set forth in this Agreement shall not be assigned or
assumed in any respect.
9.8 By entering this Agreement, the parties do not waive any powers, privileges and
authority that each has with regard to the public rights-of--way.
9.9 Binding Effect. This Agreement may be executed in several identical
counterparts, each of which shall be considered an original as against any party whose signature
MEMORANDUM OF UNDERSTANDING, P. 8
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appears thereon and all of which, when taken together, shall constitute but one instrument. This
agreement shall be deemed fully executed and binding as to ACHD and to the Municipal Party
when one or more counterparts hereof shall bear the signature of ACHD and the Municipal
Party.
By:
ADA
HIGHWAY DISTRICT
President
Jo 4... S . ~'ra~d~R
THE CITY OF MERIDIAN
By:
Title:
Print:
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Approved by Council:
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MEMORANDUM OF UNDERSTANDING, P. 9
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Ada County, State of Idaho
Maintenance Traffic Control Applications for Routine Maintenance
1. The parties acknowledge the Manual on Uniform Traffic Control Devices for Streets and
Highways -Millennium Edition, Revision 1 December 28, 2001, Errata No. 1 dated June 14,
2001 (MUTCD), and any revisions thereto, is the national standard for traffic control devices on
all public roads open to public travel in accordance with 23 U.S.C. 109(d) and 402(a).
Notwithstanding the traffic control matrix attached hereto, the Municipal Party shall at all times
comply with the standards set forth in the MUTCD for traffic control during its routine
maintenance activities.
2. The primary function of temporary traffic control is to provide for the safe and efficient
movement of vehicles, bicyclists, and pedestrians through or around temporary traffic control
zones while reasonably protecting workers and equipment. The guidelines described in the
tables below are designed for normal weather daylight traffic conditions. While these principles
provide general guidelines for good temporary traffic control, they should not be construed to
establish standards and warrants under this Agreement. Formulating specific plans for incident
management temporary traffic control is difficult because of the variety of situations that can
arise. The following typical applications include the use of various temporary traffic control
methods, but do not include a layout for every conceivable work situation. Each temporary
traffic control zone is different. Many variables, such as location of work, road type, geometrics,
vertical and horizontal alignment, intersections, interchanges, road user volumes, road vehicle
mix (buses, trucks, and cars), and road user speeds affect the needs of each zone. ACHD and the
Municipal Party to this Agreement may agree on more specific plans applicable to such party
and its particular locations and circumstances upon the execution of a written addendum to this
Agreement.
3. The tables below are designed for typical two-way streets. For one-way streets, use one
category higher level of traffic control. For example, an un-striped one-way, one-lane street
requires the appropriate application for 2 or 3 lane (two-way) roadway; and aone-way street
with 2 or more lanes requires the application fora 4 or more lane (two-way) roadway.
4. The Stationary work guidelines are designed for work at a single location where the
location is intended to be occupied for more than one (1) hour.
EXHIBIT "A"
12/ 17/2003
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